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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Media Mining Group, LLC ) File Number: EB-11-SD-0124
Licensee of Station KRDD(AM) ) NAL/Acct. No.: 201232940001
Roswell, NM ) FRN: 0010036804
Facility ID # 68131 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: December 6, 2011 Released: December 7, 2011
By the District Director, San Diego Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that Media Mining Group, LLC., ("MMG"), licensee of Station
KRDD(AM), in Roswell, New Mexico, apparently willfully and repeatedly
violated section 11.35 of the Commission's rules ("Rules") by failing
to ensure the operational readiness of the Station KRDD(AM) Emergency
Alert System ("EAS") equipment. We conclude that MMG is apparently
liable for a forfeiture in the amount of eight thousand dollars
($8,000). In addition, no later than 30 days from the date of this
NAL, MMG must submit a statement signed under penalty of perjury that
the Station KRDD(AM) EAS equipment is operating consistent with
Section 11.35 of the Rules.
II. BACKGROUND
2. On June 21, 2011, an agent from the Enforcement Bureau's San Diego
Office ("San Diego Office") conducted an inspection at Station
KRDD(AM)'s main studio located in Roswell, New Mexico. The agent
observed that although Station KRDD(AM) had EAS equipment installed,
the equipment was not operational. Specifically, the equipment was not
capable of receiving the required tests and station personnel were
unable to produce any documentation, logs, or records for the agent
showing that required EAS weekly or monthly tests had been sent or
received. Station KRDD(AM) personnel also informed the agent that the
station's EAS equipment had not been operational since December of
2010, when the station was vandalized.
III. DISCUSSION
3. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines willful as the "conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both section
312 and 503(b) of the Act and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
A. Emergency Alert System Equipment Operational Readiness
4. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the station
affirmatively requests authority to refrain from participation, and
that request is approved by the Commission. The EAS enables the
President and state and local governments to provide immediate and
emergency communications and information to the general public. State
and local area plans identify local primary sources responsible for
coordinating carriage of common emergency messages from sources such
as the National Weather Service or local emergency management
officials. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
participating station.
5. As the nation's emergency warning system, the Emergency Alert System
is critical to public safety, and we recognize the vital role that
broadcasters play in ensuring its success. The Commission takes
seriously any violations of the Rules implementing the EAS and expects
full compliance from its licensees. Section 11.35 of the Rules
requires all broadcast stations to ensure that EAS encoders, EAS
decoders, and attention signal generating and receiving equipment are
installed and operational so that the monitoring and transmitting
functions are available during the times the station is in operation.
Broadcast stations must also determine the cause of any failure to
receive required monthly and weekly EAS tests, and must indicate in
the station's log why any required tests were not received, and when
defective equipment is removed and restored to service.
6. On June 21, 2011, an agent from the San Diego Office inspected the
Station KRDD(AM) EAS equipment and found that it was not operational.
The EAS equipment was unable to receive the required tests and Station
KRDD(AM) personnel were unable to produce documentation, logs, or
records concerning EAS tests successfully or unsuccessfully received
or sent. Station personnel acknowledged to the San Diego agent that
the Station KRDD(AM) EAS equipment had not been operational since the
station was vandalized in December of 2010. Based on the evidence
before us, we find that MMG apparently willfully and repeatedly
violated section 11.35 of the Rules by failing to ensure the
operational readiness of the Station KRDD(AM) EAS equipment.
A. Proposed Forfeiture Amount
7. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
installed or operational is $8,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that MMG is apparently liable for a forfeiture of $8,000 for its
violation of section 11.35 of the Rules. We further order MMG to
submit a written statement pursuant to section 1.16 of the Rules
signed under penalty of perjury by an officer or director of MMG
within thirty (30) days of the release date of this NAL that Station
KRDD(AM) is now in compliance with section 11.35 of the Rules.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's Rules, Media Mining Group,
LLC, is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
AND ORDER in the amount of eight thousand dollars ($8,000) for
violation of section 11.35 of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture and Order, Media Mining
Group, LLC, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
10. IT IS FURTHER ORDERED that Media Mining Group, LLC, SHALL SUBMIT a
written statement, as described in paragraph 6, within thirty (30)
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, San
Diego Office, 4542 Ruffner Street, Rm. 370, San Diego, CA, 92111. MMG
shall also email the written statement to WR-Response@fcc.gov.
11. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer - Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. MMG will send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, San Diego Office, 4542 Ruffner Street, Rm. 370, San Diego, CA,
92111, and must include the NAL/Acct. No. referenced in the caption.
MMG shall also email the written response to WR-Response@fcc.gov.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by Certified Mail, Return
Receipt Requested, and regular mail, to Media Mining Group, LLC, 25
Central Park W., #17U, New York, NY 10023.
FEDERAL COMMUNICATIONS COMMISSION
James T. Lyon
District Director
San Diego District Office
Western Region
Enforcement Bureau
47 C.F.R. S: 11.35.
See 47 C.F.R. S: 11.61(a)(1) ("Required Monthly Tests of the EAS header
codes, Attention Signal, Test Script and [End of Message] code . . . .
must be transmitted with in 60 minutes of receipt by EAS Participants in
an EAS Local Area or State."); 47 C.F.R. S: 11.61(a)(2) ("Required Weekly
Tests: . . . Analog and digital AM, FM and TV broadcast stations must
conduct tests of the EAS header and [End of Message] codes at least once a
week at random days and times").
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied,
7 FCC Rcd 3454.
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at 1362.
47 C.F.R. S:S: 11.11, 11.41.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local, and relay EAS
sources.
47 C.F.R. S: 11.35.
47 C.F.R. S: 11.35(a) - (b). An EAS Participant may operate without the
defective equipment pending its repair or replacement for 60 days with out
further FCC authority. See 47 C.F.R. S: 11.35(b). If the repair or
replacement of defective equipment is not completed within 60 days, an EAS
Participant shall submit an informal request to the District Director of
the local FCC field office for additional time to repair the defective
equipment. See 47 C.F.R. S: 11.35(c). No such request was submitted by MMG
to the San Diego Office.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
11.35.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-1977
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Federal Communications Commission DA 11-1977